This is an appeal from a judgment of civil contempt. Appellant is an attorney. She was before the trial court representing one Carlos Aquino, who was scheduled to stand trial on a charge of rape. On the Commonwealth's petition, the trial court granted appellant immunity from the use against her of her testimony disclosing "any information she may have regarding the whereabouts of the . . . Defendant, Carlos Aquino, and any information she may have on how to locate the Defendant Aquino." N.T. 6/27/83 at 19. When the court ordered appellant to provide this information, appellant declined to do so on the grounds that the court lacked jurisdiction to compel her testimony; that the grant of immunity did not effectively protect her rights under the Fifth Amendment; and that the information she had been ordered to disclose was protected by the attorney-client privilege. N.T. 6/27/83 at 23-24. The court then found appellant guilty of civil contempt and ordered her to pay a fine of $100 a day until she complied with the

[ 323 Pa. Super. Page 320]

court's order. On appeal, appellant renews her arguments on jurisdiction and the attorney-client privilege. She also argues that she was entitled to a hearing on her claim, made incident to her request to the trial court for a stay, that she was being selectively prosecuted. We hold that the information appellant was ordered to disclose was protected by the attorney-client privilege. The order of the trial court is therefore reversed. We find it unnecessary to decide the issues raised by appellant's arguments on jurisdiction and selective prosecution.

Appellant's client, Carlos Aquino, was scheduled to stand trial on April 7, 1983, on a charge of rape. When Aquino did not appear for trial, the Commonwealth moved the trial court to compel appellant to "disclose the address and telephone number of the Defendant." N.T. 4/7/83 at 2.

The Commonwealth offered no testimony in support of its motion. However, the assistant district attorney did make various statements to the trial court, as follows.

According to the assistant district attorney: Aquino last appeared before the trial court on January 19, 1983, when he was admitted to bail, and gave his address as 2941 Kensington Avenue, Philadelphia. N.T. 4/7/83 at 4. On February 9 a federal warrant was issued for his arrest. Id. at 5. The federal authorities went to the Kensington Avenue address and spoke with "a man by the name of Girardo Tempkin, who said the man [Aquino] had not stayed there since Christmas and he had been in court since [ sic ] on January 19, 1983 with his attorney." Id. at 6.

The assistant district attorney continued:

Ms. Maguigan [appellant] had been in contact with Girardo Tempkin, had spoken with him and she said she did not know where he was and was trying to locate him through Girardo Tempkin at this address, through the Kensington Avenue address. We don't know and purportedly Ms. Maguigan does not know either.

N.T. 4/7/83 at 6.

[ 323 Pa. Super. Page 321]

This statement is not clear to us. Our interpretation of it is that when the federal authorities spoke to Tempkin, he told them that appellant had told him that she did not know where Aquino was and was looking for him.

The assistant district attorney went on to say: On February 19 and 22, 1983, "telephone records [ sic ] [were] intercepted" from Aquino's brother's residence in Milwaukee "to an address in Gladwynne." Id. at 6. Aquino had been extradited from Milwaukee on the charge of rape. Id. On February 23 a call was made from a telephone booth in Milwaukee to appellant's office. The call was charged to Aquino's brother's home telephone number, and was a seven-minute call. Id. at 7. On March 15 "Emigration [ sic ] officials" went to the Gladwynne address and were told that Aquino had never lived there, but on March 28 they returned and found that in fact he had been living there but had left three weeks ago. Id.

Finally, the assistant district attorney said:

The problem here is that [appellant] two weeks ago told me outside the courtroom in City Hall that despite the fact that I had several conversations with her regarding [Aquino's] whereabouts being completely unknown, that she was ready to try the [rape] case and [Aquino] would be present and when I asked, Where is he; do you know, she said, I can't tell you that.

Id. at 7-8.

This statement was contradicted by appellant. After hearing argument by respective counsel, the trial court asked appellant, "Are you ready to go to trial?", to which she replied:

No sir. And one thing I would like to make clear is that I did not two weeks ago tell Ms. McDonough [the assistant district attorney] that I would produce my client today and that I knew where he was. She asked me if I could tell her where he was and I told her that I would not and she said, Let me ask you this, are you ready for trial? I said that as far as I am concerned I was ready since January. We were both in [Room] 625 and we got the

[ 323 Pa. Super. Page 322]

first date the Court would give us. That was the extent of my representations to her. She has not called me to say, Do you object to having my witnesses on call?

Id. at 21-22.

The contradiction between the assistant district attorney's and appellant's statements remains unresolved, for the trial court has made no findings of fact -- we assume because no testimony was presented to it. Instead, immediately after appellant's statement, the court indicated that it wished further argument, and a schedule for the submission of briefs was set. Id. at 22-23.

The further argument thus requested by the trial court was heard on April 13, 1983. During the proceeding on April 7, which we have just described in some detail, it was evident that the information sought from appellant was limited to her client Aquino's address and telephone number. Thus at one point the trial court said to appellant's counsel:

I assume we are proceeding under the assumption that [appellant] knows the Defendant's [Aquino's] address. I'm not expecting you to answer, but because if she didn't know it, this whole thing was a futile exercise. So we'll go ahead on that basis.

N.T. 4/7/83 at 16.

Shortly thereafter, the assistant district attorney said:

The question is the Defendant's address . . . .

Id. at 17.

And:

We are not asking [appellant] to tell us how to find [defendant] or anything. We have a right to know. This court has a right to know where he is, if she knows, and that's all. We are not asking what communications he has had with her, anything he said with regard to where he has been hiding . . . . We are merely asking is there an address, if she knows his address and the Court deserves to know that.

Id. at 19-20.

[ 323 Pa. Super. Page 323]

At the further argument on April 13, however, the scope of the inquiry broadened, the trial court asking "whether [appellant] knows the whereabouts of the Defendant." N.T. 4/13/83 at 2. Counsel for appellant responded that this question was "materially different than the question that was posed at the hearing [on April 7], does she know the address and phone number of the Defendant." Id. When the court said, "Essentially, that's what I want to know," id., counsel replied, "She does not know the address and phone number of the Defendant," id. at 2. After further colloquy, counsel said:

Id. at 3.

The court found this representation unsatisfactory, and, stating that "there is nothing in the client-counsel, attorney relationship that makes that information free from discovery," id. at 4-5, found appellant in contempt and fined her $100 a day until she disclosed the information, id. at 6.

Upon appellant's petition for a stay pending appeal, this court, by order dated April 26, 1983, stayed the order of contempt. On the Commonwealth's application for remand so that it could present a petition asking the trial court to grant appellant immunity, this court, by order dated May 13, 1983, vacated the order of contempt and remanded the matter to the trial court.

On June 27, 1983, the Commonwealth's petition asking that appellant be granted immunity came before the trial court. The petition alleged, inter alia, that "the Commonwealth believes that [appellant] has some information regarding [Aquino's] whereabouts and wishes to question [appellant] in that regard," Petition, para. 1, and that "information regarding [Aquino's] whereabouts" was necessary "so that his continuing crime as a fugitive may be

[ 323 Pa. Super. Page 324]

terminated," and he "can be brought to trial for rape", id., para. 2(a), (b). With its petition the Commonwealth submitted a form of order providing in part that appellant be ordered to

disclose to this Court and the District Attorney's Office any information she may have regarding the whereabouts of the . . . Defendant, Carlos Aquino, and any information she may have on how to locate the defendant Aquino.

Again, no testimony was offered by the Commonwealth, only argument being heard. At the conclusion of argument, the trial court entered its order in the form submitted by the Commonwealth. N.T. 6/27/83 at 19-20. The court then directed appellant to testify forthwith in accordance with its order. Id. at 23. Appellant declined on the grounds that the court lacked jurisdiction to compel her testimony; that the grant of immunity did not effectively protect her rights under the Fifth Amendment; and that the information she had been ordered to disclose was protected by the attorney-client privilege. Id. at 23-24. The court thereupon found appellant guilty of civil contempt and ordered her to pay a fine of $100 a day until she complied with the court's order. On appellant's application, we granted a stay pending disposition of this appeal, which we ordered expedited.

1

Appellant argues that since no proceeding was pending before the trial court, the court had no jurisdiction to compel her testimony.

[ 323 Pa. Super. Page 325]

We agree with appellant that a court has no power to compel testimony where no proceeding is pending before the court. "The essence of a subpoena's function is to aid the court in the resolution of litigation, so that if there is no formal proceeding pending before the court there can be no legitimate reason to issue a subpoena." Commonwealth v. Polak, 438 Pa. 67, 69, 263 A.2d 354, 356 (1970). From this it follows that a court has no power to compel testimony by granting immunity, absent a pending proceeding. See also Page 325} Commonwealth v. DeJohn, 486 Pa. 32, 41 n. 5, 403 A.2d 1283, 287 n. 5 (1979).

The question here, however, is whether there was a proceeding pending before the trial court when appellant was granted immunity and ordered to testify. In appellant's view, there was not: Aquino's trial on the charge of rape was not "pending" but instead, never got started; and while criminal charges may someday be brought against Aquino because of his failure to appear for trial, so far as appears no such charges have been brought yet, and therefore neither can they be described as "pending." However, while no charges have been brought against Aquino for his failure to appear for trial, charges have been brought against him for rape. Perhaps it may not be said that the trial on those charges was "pending" before the court. But what about the charges themselves?

The issue has been obscured, however, by what seem to be inconsistent positions taken by the Commonwealth. On the one hand, the Commonwealth distinguishes Polak and DeJohn on the ground that "these cases involved only ongoing investigations whereas the instant case involves a pending prosecution within the court's jurisdiction." Brief for Commonwealth at 12 n. 11. (Commonwealth's emphasis.) This seems to argue that the trial court had jurisdiction because of the fact that appellant's client, Aquino, had been charged with rape and directed to appear for trial. And consistent with this argument, the Commonwealth alleged in its petition that appellant be granted immunity that "[t]his information [ i.e., 'information regarding [Aquino's] whereabouts'] is . . . essential so that defendant can be brought to trial for rape." Petition, para. 2(b). On the other hand, the Commonwealth also alleged in its petition, as the first reason why appellant should be granted immunity, that "[i]t is necessary for the Commonwealth to obtain information regarding [Aquino's] whereabouts so that his continuing crime as a fugitive may be terminated." Id. paragraph 2(a). This seems to argue that because Aquino was committing a crime, the trial court had jurisdiction to

[ 323 Pa. Super. Page 326]

compel appellant's testimony so that the Commonwealth could investigate and apprehend him for that crime.

The trial court itself was of the view that its jurisdiction derived from the Immunity Act. Slip op. at 20-21. Section (a) of the Act provides:

(a) General rule. -- Immunity orders shall be available under this section in all proceedings before:

(1) Courts

(2) Grand juries

(3) Investigating grand juries

(4) The minor judiciary or coroners.

42 Pa.C.S.A. § 5947(a).

The trial court held that the rape charges against Aquino were "proceedings before [the court]." Id. at 21. The court did not discuss the Commonwealth's apparent invocation of its jurisdiction to enable an investigation of Aquino for his continuing crime as a fugitive.

It seems clear that if the claim were that appellant had information relevant to whether Aquino had committed the rape, the trial court would have had jurisdiction to grant her immunity so that the Commonwealth might call her as a witness against Aquino. But it is not so clear that the Immunity Act was intended to extend to a situation where the information sought is ir -relevant to whether the rape was committed.

In saying this, we recognize that evidence that Aquino had not appeared for trial might be relevant as tending to prove consciousness of guilt and hence guilt itself. See generally McCormick on Evidence 655 (2d ed. 1972). But appellant's testimony was not sought to prove that Aquino had fled, but to prove where he had fled. In its brief, the Commonwealth leaves no doubt on this point, stating that "[a]ppellant has not been asked why her client fled, but where he may be found." Brief for Commonwealth at 6-7 n. 8. It does not appear how such evidence could be relevant at trial. Indeed, when at oral argument counsel for appellant asserted that the Commonwealth would try to

[ 323 Pa. Super. Page 327]

use appellant's testimony against her client at trial, counsel for the Commonwealth denied the assertion, saying that the testimony was sought only so that Aquino could be brought to trial; and in its Supplemental Brief, at 2, the Commonwealth states that the trial court ordered appellant to testify so that the court could "proceed with the pending prosecution." It may be that the Immunity Act by its reference to immunity orders "in all proceedings before" a court permits an attempt to secure testimony that is irrelevant to proof in a given proceeding of the defendant's guilt, but we have not been cited to, nor are we aware of, any precedent supporting such an extension of the Act. So far as we know, the use made of the Immunity Act in this case is unprecedented.

Thus we find ourselves unpersuaded by the reasoning either of appellant, the Commonwealth, or the trial court. If we had to decide the issue of the trial court's jurisdiction, then of course we would. But, for reasons that will appear, we have concluded that in any event the information sought from appellant was protected by the attorney-client privilege. In these circumstances we believe the better way for us to proceed is to refrain from deciding an issue both difficult and novel, and so far as we can tell, unlikely to arise again. Instead, we shall simply assume that the trial court did have jurisdiction, and decide the appeal on its merits.

2

(a)

"The notion that the loyalty owed by the lawyer to his client disables him from being a witness in his client's case is deep-rooted in Roman law," McCormick, supra at 175 (footnote omitted), and the attorney-client privilege, "of which we find the first trace in Elizabeth's time," id., is the oldest of the privileges protecting confidential communications. 8 Wigmore, Evidence §§ 2292 at 542 (McNaughton rev. 1961). See also Cohen v. Jenkintown Cab Company, 238 Pa. Super. 456, 357 A.2d 689 (1976). Wigmore states the privilege as follows:

[ 323 Pa. Super. Page 328]

Where legal advice of any kind is . . . sought from a professional legal adviser in his capacity as such, . . . the communications relating to that purpose, . . . made in confidence . . . by the client, . . . are at his instance permanently protected . . . from disclosure by himself or by the legal adviser, . . . except the protection be waived. Wigmore, supra at 554.

The original theory by which the privilege was explained was that on his oath and honor, the attorney's "first duty . . . [was] to keep the secrets of his clients." Wigmore § 2290 at 543 (citation omitted). In the early 1700's, however, a "new theory began to appear [which] looked to the necessity of providing subjectively for the client's freedom of apprehension in consulting his legal adviser." Id. (emphasis in original). The older theory "struggled along for some time by the side of the newer one, like two powerful streams debauching into the same channel." Id. at 543-544. But since the late 1700's the privilege has been grounded on the necessity of promoting freedom of communication between attorney and client by allaying the client's fear that the attorney will be compelled to disclose a confidence. Id. at 545. This court has repeatedly explained the privilege in these terms. Commonwealth v. Hutchinson, 290 Pa. Super. 254, 434 A.2d 740 (1981) (purpose of privilege to foster full communication between attorney and client); Brennan v. Brennan, 281 Pa. Super. 362, 422 A.2d 510 (1980) ("[T]he privilege is not concerned with prejudice, the ascertainment of truth, or the reliability of attorney-client communications, but only to foster a confidence between an advocate and his client that will lead to a trusting and open dialogue.") (citation omitted); Cohen v. Jenkintown Cab Company, supra (purpose of privilege to enable client to place unrestricted and unbounded confidence in attorney). See also Estate of Kofsky, 487 Pa. 473, 409 A.2d 1358 (1980).

As is true of other aspects of the law, such as the right to be free of unreasonable searches and seizures, or the privilege against self-incrimination, the attorney-client privilege

[ 323 Pa. Super. Page 329]

is sometimes characterized as protecting someone who has violated the law. But this reveals a fundamental misconception. The privilege is to protect, not the guilty, but the administration of justice. "[T]he theory [is] that claims and disputes which lead to litigation can most justly and expeditiously be handled by practiced experts, namely lawyers, and that such experts can act effectively only if they are fully advised of the facts by the parties whom they represent . . . . The proposition is that the detriment to justice from a power to shut off inquiry to pertinent facts in court, will be outweighed by the benefits to justice (not to the client) from a franker disclosure in the lawyer's office." McCormick, supra at 175. Thus, our Supreme Court has stated that "the damage to the administration of justice occurs when the sanctity of the confidence is improvidently violated, not when the evidence is given substantive consideration." Estate of Kofsky, supra, 487 Pa. at 482, 409 A.2d at 1362.

In Pennsylvania the attorney-client privilege has as to criminal cases been codified in 42 Pa.C.S.A. § 5916.*fn1 It provides:

In a criminal proceeding counsel shall not be competent or permitted to testify to confidential communications made to him by his client, nor shall the client be compelled to disclose the same unless in either case this privilege is waived upon the trial by the client

Similarly, Canon 4 of the Code of Professional Responsibility*fn2 provides that "[a] Lawyer Should Preserve the Confidences and Secrets of a Client," and the Code's Disciplinary

[ 323 Pa. Super. Page 330]

Rule 4-101, entitled "Preservation of Confidences and Secrets of a Client," includes ...

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